Environmental Site Assessment
It takes information to identify if a property is a Brownfields or not. Common sense tells us every property with commercial history does not require environmental cleanup. To determine which ones may have environmental issues, it is impractical to go to every potential Brownfields and collect samples for laboratory chemical testing. Even if money were no object, you can never test for everything, everywhere on any property. Where do you begin?
Phase 1 Application
The Phase I Environmental Site Assessment (ESA) is a preliminary look at a possible Brownfields property. It is limited in nature and involves records research and an onsite visual, but rarely testing. Phase I ESAs identify recognized environmental conditions in which a past, current, or potential release of contaminants may have occurred. Identification of a recognized environmental condition does not mean a release actually occurred or, if it has, that it requires cleanup. The Phase I report does not obligate reporting of conditions to regulatory agencies for action except in special circumstances of extreme imminent threat to public health. Conducting Phase I ESAs:
- Provides essential information to parties of the property transaction
- Provides liability protection from future enforcement for owners
- Clears properties of environmental issues for sale or redevelopment
- Helps developers decide where actual testing/measurement should occur if further information is desired
The Comprehensive Environmental Response, Compensation and Liability Act and Amendments (CERCLA/ Superfund) provide that the responsibility of correcting past environmental problems can fall to a current owner or new buyer. However, EPA recognized undiscovered conditions could remain hidden until after purchase. The 2002 Small Business Liability Relief and Brownfields Revitalization Act (the Act) provides for liability protection from future EPA action if the interested party conducts "all appropriate inquiries" (AAI). It requires the innocent landowner or purchaser of potentially contaminated property to conduct a defined level of research for the AAI.
The Act establishes standards and practices to conduct "all appropriate inquiries." These inquiries rarely involve chemical testing. These inquiries include an industry practice used in our community called ASTM E-1527, or the "ASTM Phase 1 Standard."
ASTM E1527 Standard Practice
Phase I Environmental Site Assessment Process: The purpose of this practice is to define good commercial and customary practice in the United States of America for conducting an environmental site assessment of a parcel of commercial real estate with respect to the range of contaminants within the scope of Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) (42 U.S.C. §§960) and petroleum products. As such, this practice is intended to permit a user to satisfy one of the requirements to qualify for the innocent landowner, contiguous property owner, or bona fide prospective purchaser limitations on CERCLA liability ("landowner liability protections", that is, the practices that constitute "all appropriate inquiry into the previous ownership and uses of the property consistent with good commercial or customary practice" as defined at 42 USCU.S.C. § 9601 (35) (B).